MOREHEAD, Ky. (AP) — A clerk in a rural Kentucky county continued to refuse marriage licenses to same-sex couples Thursday in defiance of a mounting pile of federal court orders that reject her claim that her Christian faith should exempt her from licensing a gay union.
The United States Supreme Court, which two months ago legalized gay marriage across the nation, will now be asked to consider whether Rowan County Clerk Kim Davis can continue to deny marriage licenses until her appeal is complete, a process that could drag out for several more months.
“It’s getting tedious. We get torn down, built back up, torn down, built back up,” said David Ermold. He and his partner, David Moore, have been rejected by Davis’ office twice. “It’s emotionally draining that this keeps happening over and over.”
Days after the Supreme Court’s same-sex marriage ruling, Davis announced that her religious convictions prevented her from sanctioning a gay marriage. She refused to issue licenses to any couple, gay or straight.
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The American Civil Liberties Union sued her last month on behalf of four couples. U.S. District Judge David Bunning ordered Davis to issue marriage licenses two weeks ago. He later delayed that ruling until Aug. 31 or until the U.S. 6th Circuit Court of Appeals issued a ruling. The appeals court did so on Wednesday, denying Davis’ appeal.
But a deputy clerk in Davis’ office on Thursday told William Smith Jr. and James Yates, a couple for nearly a decade, the office believes Bunning’s delay remains in effect until Aug. 31. He refused to give his name or give them a license.
Smith and Yates, rejected for the third time, left the office shaking their heads in anger and bewilderment.
Davis, meanwhile, sat in her office with the door closed. She talked on the phone, ignoring the commotion as Yates and Smith, trailed by television cameras, poured in through the door and demanded answers.
“The court of appeals did not provide any religious accommodation rights to individuals, which makes little sense because at the end of the day it’s individuals that are carrying out the acts of the office,” said Mat Staver, whose religious law firm Liberty Counsel is representing Davis. “They don’t lose their individual constitutional rights just because they are employed in a public office.”
Staver told The Associated Press he plans to file an emergency petition with the Supreme Court on Thursday or Friday. He wants the court to delay the judge’s order until the appeal is completed, a process that could take several months.
Her appeal to the nation’s highest court will fall to Justice Elena Kagan, who oversees the 6th Circuit. Kagan, a liberal judge, sided with the majority this summer when it ruled gay marriage bans unconstitutional.
Kagan could reject it outright in a matter of days, which would exhaust Davis’ options for appeal, said Sam Marcosson, a constitutional law professor at the University of Louisville.
“Once the stay is denied then the question will be right there on the front burner of whether she will comply because there will be no further avenue for her, no further roads she can cross or take to try to delay,” Marcosson said.
The question will then become what Davis chooses to do.
She has said she will not resign and pledged to never issue a license to same-sex couples. She can only be removed from office if the state Legislature impeaches her, which is unlikely.
If she continues to ignore court orders, the couples’ attorneys are likely to ask Bunning to hold her in contempt of court, which triggers a new round of hearings, evidence and testimony that could drag on for some time.
The law offers the judge wide discretion on how to force her hand: he can sanction her with fines, or order that she be jailed.
“She’s put herself in a position where she is certainly in grave danger of being personally liable for both the costs that the plaintiffs are incurring and fines and any penalties,” Marcosson said.
But it remains unclear if she will be personally responsible for any fines, or if county taxpayers will be left with the bill. Marcosson said that question likely will have to be litigated.
“They’re running out of options,” said Ermold. He and his partner were ecstatic when the Supreme Court issued its ruling in June. In the two months since, they have grown tired of the legal ups and downs and delay tactics in their home county.
Activists with signs and rainbow umbrellas lined up along the street outside Davis’ window, shouting “Do your job.” Later, Davis temporarily closed her office for “computer upgrades,” and posted a note on the door that the office would reopen in an hour.
But she has her supporters, too.
Casey County Clerk Casey Davis, also opposed to issuing licenses to same-sex couples, got on his bike at 4:30 a.m. Thursday and began cycling more than 450 miles across the state to bring attention to Davis’ predicament. It will take him an estimated 44 hours to complete.
“I cannot let my sister go to jail without my doing something to let others know about her plight,” Casey said in the statement. Although the two are not related by blood, The Family Foundation says they are bonded by religious conviction.
Beam reported from Frankfort, Kentucky.